Can’t Stop This Train: Avvo Adds Doctor Reviews

Today, Avvo, a lawyer-rating service introduced a new rating service for doctors. Though Avvo isn’t first to market with doctor review sites — more than a year ago, there were already several other players in the field — Avvo’s entrance shows one thing: whether we professionals like it or not, consumer ratings services are here to stay. Indeed, that’s an observation that Niki Black and I noted in this section of our book, Social Media for Lawyers , where we explained that a robust social media presence could serve as an antidote to negative reviews.

Like many lawyers, doctors aren’t necessarily embracing consumer reviews. Some doctors have gone so far as to demand that patients sign waivers agreeing not to post online comments. Others, however, such as Dr. Kevin Pho, a primary care physician and USA Today contributor, argues that doctors should encourage patients to leave online reviews, since more data are needed to make the ratings useful. Pho points out a fact that lawyers should take to heart: almost 90 percent of online patient reviews were positive. But Pho also contends that online services should not allow anonymous reviews since accountability allows doctors to use the feedback to improve their practice. (As an aside, in my view, anonymity is a red herring, since anyone can post a negative screed about a provider online; they don’t need ratings sites to do it. Moreover, I’m confident that the market will sort out any anonymity issues; in other words, a site that contains too many crazy ramblings of anonymous reviewers will eventually lose credibility with users. So review sites will have no choice but to deal with the anonymity issues at some point to maintain quality).

To its credit, the ABA hasn’t cracked down on lawyer ratings sites (though how could it with MartindaleHubbell, the great granddaddy of ratings companies as a frequent ABA sponsor?). Still, the ABA’s recent probe regarding the transparency of lawyer rating sites as part of the Ethics 2020 Initiative seems a bit ominous. State disciplinary bodies are far worse, though. South Carolina has no problem with ratings, but has held that lawyers may violate ethics rules by failing to monitor their profiles at third party sites to ensure that client testimonials meet state ethics rules. And as I learned at last week’s MyLegal Conference, the Virginia Bar, sua sponte, is auditing third party sites and issuing take-down notices to lawyers with non-compliant testimonials at third-party sites, even if those testimonials were unsolicited.

Lawyer regulators claim to regulate ratings sites in the name of consumer protection. But to date, I am not aware of a single complaint by a consumer alleging that he or she was mislead or deceived about a lawyer’s quality due to customer rating sites. More importantly, as Avvo’s recent venture into medical reviews demonstrates, customers are hungry for feedback and reviews about professional service providers; specifically, for information that comes from other consumers and focuses on characteristics that matter to them: returned phone calls, prompt service, taking time to explain a matter. To try to quash ratings service and testimonials on third-party sites now that consumers are demanding them doesn’t serve the public interest, but runs counter to it.

How ironic that just as lawyer regulatory bodies are demanding transparency of ratings sites, they themselves are not transparent about their real interests: to return to a system where well-connected law firms dominate the profession, boxing out competition from smaller and equally qualified rivals.

Don’t forget to sign up for the briefing on ABA Ethics 2020 Commission rules on lawyer use of the web and cloud computing, set for November 4, 2010, here.

A judge threw out a lawsuit today filed by a Duluth physician who said he was defamed by a man who publicly criticized his bedside manner.

Dr. David McKee, a neurologist with Northland Neurology and Myology, alleged that Dennis Laurion of Duluth defamed him and interfered with his business by making false statements to the American Academy of Neurology, the American Neurological Association, two physicians in Duluth, the St. Louis County Public Health and Human Services Advisory Committee and St. Luke’s hospital, among others.

Laurion was critical of the treatment his father, Kenneth, received from McKee after suffering a hemorrhagic stroke and spending four days at St. Luke’s hospital from April 17-21 last year. Kenneth Laurion recovered from his condition.

Dennis Laurion claimed that any statements he made about the doctor were true and that he was immune from any liability to the plaintiff.

In his 18-page order dismissing the suit, Sixth Judicial District Judge Eric Hylden wrote that looking at Laurion’s “statements as a whole, the court does not find defamatory meaning, but rather a sometimes emotional discussion of the issues.”

Hylden addressed the fact that Laurion posted some of his criticisms of McKee on websites. “In modern society, there needs to be some give and take, some ability for parties to air their differences,” the judge wrote. “Today, those disagreements may take place on various Internet sources. Because the medium has changed, however, does not make statements of this sort any more or less defamatory.”
Hylden concluded his order by stating that there wasn’t enough objective information provided to justify asking a jury to decide the matter.

Laurion was relieved by the court’s ruling.

“My parents, who are now 86, my wife and I have found this process very stressful for the past year, since my father’s stroke. There was never just one defendant,” he said. “We’re grateful that Judge Hylden found no need for a trial.”

In his suit, McKee alleged that Laurion made false statements including that McKee “seemed upset” that Kenneth Laurion had been transferred from the Intensive Care Unit to a ward room; that McKee told the Laurion family that he had to “spend time finding out if [the patient] had been transferred or died;” that McKee told the Laurions that 44 percent of hemorrhagic stroke victims die within 30 days; that McKee told the patient that he didn’t need therapy; that McKee said it didn’t matter that the patient’s gown was hanging from his neck with his backside exposed; that McKee blamed the patient for the loss of his time; and that McKee didn’t treat his patient with dignity.

According to the Minnesota Board of Medical Practice website, McKee has had no disciplinary actions brought against him.

“I’m very disappointed by this court’s decision because as far as I can see the only avenue that I can see that I had to respond to this overwhelming attack was through the courts, and for the time being it appears that avenue has been closed without me ever getting a chance to present my evidence,” McKee said.

McKee said he hadn’t had a chance to confer with Marshall Tanick, his Minneapolis attorney. He said he will do so before he decides whether to appeal the decision. Tanick told the News Tribune he had not yet seen the decision and couldn’t comment on it.

WELL as a patient I need some kind of place to share my experience with others so they do not have to go through what I went through. Kind of like ‘consuner’s report for Doctors…I have NEVER been treated like this before..I just had my 3rd surgery for serve nerve pain in my foot. (9 years of suffering) Dr. Dellon came highly recommend. Here it is 3 months later and the pain is unbelievable, worse than ever. Dr. Dellon has been a very difficult Doctor to deal with from filling the insurance codes incorrectly (so now I am out $20,000.00) to telling me I should not be in pain and accusing me of just wanting pain meds. (I was told it would be a painful 6-9 month recovery). I have never been treated so horribly and don’t know where to turn. I wish I could find more information about this uncaring doctor. I fear back-lash from Dr. Dellon

Two years ago, Dennis Laurion
logged on to a rate-your-doctor website to vent about a Duluth neurologist, Dr.
David McKee.

McKee had examined Laurion’s
father, Kenneth, when he was hospitalized after a stroke. The family, Laurion
wrote, wasn’t happy with his bedside manner. “When I mentioned Dr. McKee’s
name to a friend who is a nurse, she said, ‘Dr. McKee is a real tool!'” he
wrote.

McKee wasn’t amused. He sued
Laurion for defamation, and now the case is pending before the Minnesota
Supreme Court.

McKee, 50, is one of a small
number of doctors who have gone to court to fight online critics, in cases that
are testing the limits of free speech on the Internet. “Doctors are not
used to public criticism,” said Eric Goldman, an associate professor at
the Santa Clara University School of Law in California, who tracks such
lawsuits. “So it’s a new phenomenon for them.”

While such cases are rare,
Goldman said, they’ve been popping up around the country as patient review
sites such as vitals.com and rateyourdoctor.com have flourished. Defamation
suits are “kind of the nuclear option,” Goldman said. “It’s the
thing that you go to when everything else has failed.”

McKee’s lawyer, Marshall
Tanick, said the doctor felt he had no choice but to sue to protect his
reputation and his medical practice. “It’s like removing graffiti from a
wall,” said Tanick. He said Laurion distorted the facts — not only on the
Internet, but in more than a dozen complaint letters to various medical groups.
“He put words in the doctor’s mouth,” making McKee “sound
uncaring, unsympathetic or just stupid.”

McKee calls Laurion “a
liar and a bully,” and says he has spent more than $7,000 to
“scrub” the Internet of more than 100 vitriolic comments, many traced
to a single computer (IP address) in Duluth.

“Somebody who holds a
grudge against you can very maliciously go on the Internet, post anything they
want, and … basically redefine who you are,” he said.

At the same time, his
lawyer, John D. Kelly, defends the postings. He says it was Laurion’s
perception that “the doctor’s speech and conduct were tactless and
inconsiderate.” And that, he argued, is “constitutionally
protected.”

So far, Minnesota courts
have had mixed reactions. A district court in Duluth dismissed McKee’s lawsuit
last year, but the state Appeals Court reinstated it in January. Laurion has
appealed to the Minnesota Supreme Court.

The dispute isn’t about
McKee’s medical decisions, but about something less tangible: his body language
and comments when he walked into Kenneth Laurion’s room at St. Luke’s Hospital
in Duluth on April 20, 2010.

In his online postings,
Dennis Laurion wrote that McKee “seemed upset” because he thought his
father, then 84, was still in intensive care. “Never having met my father
or his family, Dr. McKee said, ‘When you weren’t in the ICU, I had to spend
time finding out if you transferred or died,'” according to Laurion’s
account. “When we gaped at him, he said, ‘Well, 44 percent of hemorrhagic
strokes die within 30 days. I guess this is the better option.'”

Laurion, who was visiting
with his wife and mother, wrote that McKee was brusque and dismissive during
the exam, especially when his father raised concerns that his hospital gown was
hanging open at the back. “Dr. McKee said, ‘That doesn’t matter,'”
according to Laurion’s account. “My wife said, ‘It matters to us,'”
and they left the room.

McKee discovered the online
comments when a patient brought them to his attention. He filed suit, seeking
more than $50,000 in damages. “The way he quoted me was completely
inaccurate,” McKee said in an interview. At the time, he said, nobody in
the room “appeared to me to be the slightest bit upset.”

According to court
documents, McKee admitted making a “jocular comment” about only two
ways to leave the intensive care unit, but said he only meant that he was
relieved to find Laurion in his hospital bed. He denied citing any statistic
about stroke deaths and said the entire story was distorted beyond recognition.

“Every physician gets
an occasional complaint from a patient, or even a patient’s family member, but
this was so ridiculous,” he said. “This just seemed so extremely over
the top, and really meant to be harmful.”

In the first legal battle,
district Judge Eric Hylden in Duluth sided with Laurion. “The statements
in this case appear to be nothing more or less than one man’s description of
shock at the way he and in particular his father were treated by a
physician,” he wrote in dismissing the suit in April 2011.

The appeals court disagreed,
ruling in January that some of the statements were fair game for a defamation
suit and sending the dispute back for trial.

Tanick, McKee’s lawyer, said
the case isn’t just about someone voicing an opinion. He said Laurion defamed
the doctor by accusing him of things “that never happened.”

Laurion’s lawyer, however,
says it’s a matter of perception. “Something happened in that room that
disturbed the four members of the family significantly,” he said.

More than a dozen defamation
suits have been filed since 2004 by doctors or dentists over online reviews;
most have been dismissed or settled, according to Eric Goldman, an associate
professor at the Santa Clara University School of Law in California.

Some medical practices have
even tried to silence critics by requiring patients to sign a form forbidding
them from posting comments on the Internet. But Dr. Jeffrey Segal, a North Carolina
neurosurgeon who promoted the controversial forms, says he’s since had a change
of heart; he “retired” them last year in the face of widespread
criticism. Now his firm, MedicalJustice.com, advises doctors how to use
consumer websites to their advantage. “Doctors need to know how they’re
being perceived,” he said. “If you’ve got 100 people saying he’s a
jerk, maybe he is a jerk,” he said. But the vast majority of reviews are
positive, he noted.Most of the time, Segal said, a negative review can be neutralized
“with something as simple as saying, ‘Hey, I was having a bad day. I’m
sorry.'” Or calling the patient to apologize for getting off on the wrong
foot. “Those words often solve the problem,” he said.

Still, Goldman says it’s
important for consumers to “choose their words” carefully in online
reviews. “We’ve been given the power to critique vendors in the
marketplace,” he said, “but no one’s taught us how to make sure that
we aren’t going to lose our house by doing so.”

Two years ago, a Duluth neurologist, Dr. David McKee, sued the
son of an elderly patient for defamation over some negative comments that were
posted on rate-your-doctor websites.

On Tuesday, the state’s top court was asked to decide whether
the lawsuit should finally go to trial, after the case was thrown out by a
lower court and reinstated on appeal. The lawsuit is one of a growing number of
legal battles testing the limits of free speech on the Internet.

A good portion of the oral arguments were devoted to the meaning
of the words that Dennis Laurion, 65, used to describe his family’s encounter
with McKee in April, 2010, when Laurion’s father, Kenneth, then 84, was
hospitalized with a stroke.

John Kelly, Laurion’s attorney,
noted that Internet sites are a “free for all” for people to share
opinions and that his client’s comments were perfectly appropriate. “We
have a word, the word ‘tool,'” Kelly told the justices. “When you
look at the word, you have to ask: Is it defamatory?” He argued that the
phrase, while “it clearly is not a compliment,” is no worse than
“calling someone an idiot or a fool.”

During questioning, some of the justices seemed to agree.
“Saying someone’s a ‘real tool’ sounds more like an opinion than a
statement of fact,” Justice Christopher Dietzen said. Chief Justice Lorie
Skjerven Gildea had a similar reaction. “The point of the post is, ‘This
doctor did not treat my father well,'” she said. “I can’t grasp why
that wouldn’t be protected opinion.”

Dennis Laurion fired off his screed on a few rate-your-doctor websites
in April 2010, along with some letters about what he saw as poor bedside manner
by his father’s neurologist. He expected at most what he calls a
“non-apology apology.”

“I really thought I’d receive something within a few days along the
lines of ‘I’m sorry you thought I was rude, that was not my intent’ and that
would be the end of it,” the 66-year-old Duluth retiree said. “I
certainly did not expect to be sued.”

He was. Dr. David McKee’s defamation lawsuit was the beginning of a
four-year legal battle that ended Wednesday when the Minnesota Supreme Court
ruled the doctor had no legal claim against Laurion because there was no proof
that his comments were false or were capable of harming the doctor’s
reputation.

The unanimous ruling reverses an earlier Appeals Court decision and
brings to an end the closely watched case that brought to the forefront a First
Amendment debate over the limits of free speech online.

It’s a frustrating end for McKee, 51, who said he’s spent at least
$50,000 in legal fees and another $11,000 to clear his name online after the
story went viral, resulting in hundreds more negative postings about him —
likely from people who never met him. He hasn’t ruled out a second lawsuit
stemming from those posts.

“The financial costs are significant, but money is money and five
years from now I won’t notice the money I spent on this,” he said.
“It’s been the harm to my reputation through the repeated publicity and
the stress.”

He said he offered to settle the case at no cost after the Supreme Court
hearing. Laurion contends they couldn’t agree on the terms of the settlement,
and said he not only deleted his initial postings after he was initially
served, but had nothing to do with subsequent online statements about McKee.

The lawsuit followed the hospitalization of Laurion’s father, Kenneth,
for a hemorrhagic stroke at St. Luke’s Hospital in Duluth. Laurion, his mother
and his wife were also in the room when McKee examined the father and made the
statements that Laurion interpreted as rude. After his father was discharged,
he wrote the reviews and sent the letters.

On at least two sites, Laurion wrote that McKee said that “44
percent of hemorrhagic strokes die within 30 days. I guess this is the better
option,” and that “It doesn’t matter that the patient’s gown did not
cover his backside.”

Laurion also wrote: “When I mentioned Dr. McKee’s name to a friend
who is a nurse, she said, ‘Dr. McKee is a real tool!'”

McKee sued after he learned of the postings from another patient. A St.
Louis County judge dismissed the lawsuit, saying Laurion’s statements were
either protected opinion, substantially true or too vague to convey a
defamatory meaning. The Appeals Court reversed that ruling regarding six of
Laurion’s statements, reasoning that they were factual assertions and not
opinions, that they harmed McKee’s reputation and that they could be proven as
false.

The Supreme Court disagreed. Writing the opinion, Justice Alan Page
noted that McKee acknowledged that the gist of some of the statements were
true, even if they were misinterpreted.

Page added that the “tool” statements also didn’t pass the
test of defaming McKee’s character. He dismissed an argument by McKee’s
attorney, Marshall Tanick, that the “tool” comment was fabricated by
Laurion and that the nurse never existed. Whether it was fabricated or not was
irrelevant, the court ruled. “Referring to someone as ‘a real tool’ falls
into the category of pure opinion because the term ‘real tool’ cannot be
reasonably interpreted as stating a fact and it cannot be proven true or
false,” Page wrote.

Tanick said the ruling could present a slippery slope.

“This decision gives individuals a license to make derogatory and
disparaging statements about doctors, professionals and really anyone for that
matter on the Internet without much recourse,” he said.

Jane Kirtley disagreed. The professor of media ethics and law at the
University of Minnesota School of Journalism said the ruling stems from
“an elementary principle of libel law. I understand the rhetoric, but this
is not a blank check for people to make false factual statements,” she
said. “Rather, it’s an endorsement that statements of opinion are
protected under the First Amendment.”

Laurion’s attorney, John D. Kelly, said the fact that Laurion’s speech
was made online was inconsequential to the ruling, which treated it as a
standard defamation case. “It’s almost as if things were said around the
water cooler or perhaps posted in a letter to the editor,” he said.
“I think the principles they worked with are applicable to statements made
irrespective of the medium.”

A man’s online post calling a doctor “a real tool”
is protected speech, the Minnesota Supreme Court ruled Wednesday. The state’s
highest court dismissed a case by Duluth neurologist David McKee, who took
offense when a patient’s son posted critical remarks about him on
rate-your-doctor websites. Those remarks included a claim that a nurse called
the doctor “a real tool,” slang for stupid or foolish.

On Wednesday, the court tossed a lawsuit filed by
neurologist David McKee, who claimed he was defamed by several statements made
by defendant Dennis Laurion on websites used to rate doctors, report the Duluth
News Tribune, the Minneapolis Star Tribune and the Associated Press.

The lawsuit followed the hospitalization of Laurion’s father, Kenneth, for a hemorrhagic
stroke at St. Luke’s Hospital in Duluth. Laurion, his mother and his wife were
also in the room when McKee examined the father and made the statements that
Laurion interpreted as rude.

Laurion expressed his dismay in several online posts with
what he considered the doctor’s insensitive manner.

Laurion had posted his comments on a website where patients
review their doctors. The case has been watched with interest because of the
potential conflict between free speech versus protection of professional
reputations on the Internet.

On at least two sites, Laurion wrote that McKee said that
“44 percent of hemorrhagic strokes die within 30 days. I guess this is the
better option,” and that “It doesn’t matter that the patient’s gown
did not cover his backside.”

Laurion also wrote: “When I mentioned Dr. McKee’s name
to a friend who is a nurse, she said, ‘Dr. McKee is a real tool!'”

He expected at most what he calls a “non-apology
apology.”

“I really thought I’d receive something within a few
days along the lines of ‘I’m sorry you thought I was rude, that was not my
intent’ and that would be the end of it,” the 66-year-old Duluth retiree
said. “I certainly did not expect to be sued.”

He was. Dr. David McKee’s defamation lawsuit was the
beginning of a four-year legal battle that ended Wednesday when the Minnesota
Supreme Court ruled the doctor had no legal claim against Laurion because there
was no proof that his comments were false or were capable of harming the
doctor’s reputation.

In 2011, State District Judge Eric Hylden ruled that McKee
was not defamed by the criticism and dismissed the doctor’s lawsuit.

McKee appealed to the Minnesota Court of Appeals; and in
January 2012, that court sent the case back to the district court for a jury to
decide whether six statements Laurion posted about McKee on rate-your-doctor
websites and distributed elsewhere were defamatory.

Laurion appealed the Court of Appeals decision to the
Supreme Court and the case was heard in St. Paul in September.

Writing the opinion, Justice Alan Page noted that McKee
acknowledged that the gist of some of the statements were true, even if they
were misinterpreted.

The ruling also said it doesn’t matter whether the unnamed
nurse actually exists. McKee’s attorney argued that Laurion might have
fabricated the nurse, something Laurion’s attorney denied. And it said the
doctor’s objections to Laurion’s other comments also failed the required legal
tests.

“Referring to someone as ‘a real tool’ falls into the
category of pure opinion because the term ‘real tool’ cannot be reasonably
interpreted as stating a fact and it cannot be proven true or false,” Page
wrote.

“I’m sure he and his family are very happy with this
result,” Laurion’s attorney, John Kelly, said. “It’s been a long and
difficult process for them.”

Laurion said the entire experience was stressful on his
family.

“The initial excitement has not worn off,” he told the News
Tribune. “I’m very gratified it’s all over.”

Laurion, whose father survived the stroke and is now 87,
said he feels vindicated — not in the sense that he’s proven the things he
said, but that he had the right to express his opinion of a single encounter on
a website designed to rate doctors.

He regrets the cost of the litigation — in his case, the
equivalent of two years’ income, he said, some of which he had to borrow from
relatives who dipped into their retirement funds.

“I regret that it became as painful as it was,”
Laurion said. “I don’t think I regret having posted the comment. I thought
at the time that it was my right to do so.”

McKee’s lawyer, Marshall Tanick, said he and McKee plan no
further appeals and that they were disappointed with the ruling.

McKee, a neurologist with Northland Neurology and Myology,
said Wednesday he was disappointed and frustrated. “We need to change the law so someone with a
personal vendetta who is going to use the Internet to make defamatory statements
can be held responsible,” he said.

It’s a frustrating end for McKee, 51, who said he’s spent at
least $50,000 in legal fees and another $11,000 to clear his name online after
the story went viral, resulting in hundreds more negative postings about him —
likely from people who never met him.

He hasn’t ruled out a second lawsuit stemming from those
posts.

“The financial costs are significant, but money is
money, and five years from now I won’t notice the money I spent on this,”
he said. “It’s been the harm to my reputation through the repeated
publicity and the stress.”

He said he offered to settle the case at no cost after the
Supreme Court hearing. Laurion contends they couldn’t agree on the terms of the
settlement, and said he not only deleted his initial postings after he was
initially served, but had nothing to do with subsequent online statements about
McKee.

Tanick said the ruling could present a slippery slope.
“We feel it gives individuals undue license to make disparaging and
derogatory statements about these people, particularly doctors and other
licensed professionals, on the Internet without much recourse,” Tanick
said.

Jane Kirtley disagreed. The professor of media ethics and
law at the University of Minnesota School of Journalism said the ruling stems
from “an elementary principle of libel law. I understand the rhetoric, but
this is not a blank check for people to make false factual statements,”
she said. “Rather, it’s an endorsement that statements of opinion are
protected under the First Amendment.”

Minnesota Newspaper Association attorney Mark Anfinson, who
watched the oral arguments before the Supreme Court in September, said on
Wednesday the justices made the right decision. That being said, “You can’t
blame a guy like Dr. McKee for being upset,” Anfinson said. “What this case
really exemplifies is not so much legal precepts in libel law, but the impact
of the Internet on the ability to publish unflattering comments about people.”

Before the Internet, people who complained about others
typically did so to a small group of family, friends and acquaintances. “No one
in the wider world ever heard them,” Anfinson said. That is no longer the case.

“If you’re a practicing physician or other professional in a
highly competitive environment, and this stuff is out there for any potential
patient or client to see, it isn’t as simple as a superficial reading of the
Supreme Court opinion would suggest,” he said. “I kind of feel for the guy, but
the law as it is currently constituted really doesn’t provide him much of a
remedy. That is the moral of the story.”

The case highlighted the tension that sometimes develops on
ratings sites, such as Yelp and Angie’s List, when the free speech rights of
patients clash with the rights of doctors, lawyers and other professionals to
protect their good names.

Experts say lawsuits over negative professional reviews are
relatively uncommon and rarely succeed, partly because the law favors freedom
of speech.

Laurion’s attorney, John D. Kelly, said the fact that
Laurion’s speech was made online was inconsequential to the ruling, which
treated it as a standard defamation case. “It’s almost as if things were
said around the water cooler or perhaps posted in a letter to the editor,”
he said. “I think the principles they worked with are applicable to
statements made irrespective of the medium.”

While the decision is not binding in other states, Kelly and
Tanick agreed that it might influence how other courts would rule on similar
questions. Kelly said lawyers often look at rulings from other jurisdictions
when they put cases together, sometimes for leads or guidance.

“Certainly this is a cutting edge issue and I’m sure
lawyers and courts in other jurisdictions will pay attention to this decision
and give it the weight it deserves,” Tanick said.

In reply to an e-patients.net article “Minnesota Supreme
Court sides with patient on social media defamation suit,” Attorney Marilyn
Mann said, “I think McKee’s lawyer is incorrect. The case turned on standard
principles of defamation law and doesn’t really break new ground.”

Mark A Fischer of Duane Morris LLP, a full-service law firm
with more than 700 attorneys in 24 offices in the United States and
internationally, said on February 11, 2013, “For those who are under criticism,
one of the practical consequences of bringing a defamation action is that more
publicity for the accused statements is almost an inevitable result, whether
the statements are ultimately found libelous or not. In other words, in
weighing the pros and cons of initiating a lawsuit, all potential defamation
and privacy claim plaintiffs should consider the rule of Hippocrates applicable
to physicians, ‘First do no harm.’”

In his Technology & Marketing Law Blog, Eric Goldman
said on February 4, 2013, “I’ve been tracking doctor v. patient lawsuits for
online reviews. See my compilation. As you can see from a quick perusal,
doctors usually lose or voluntarily drop these lawsuits. Indeed, with
surprising frequency, doctors end the lawsuit by writing a check to the
defendant for the defendant’s attorneys’ fees where the state has a robust
anti-SLAPP law. Doctors and other healthcare professionals thinking of suing
over online reviews, take note: you’re likely to lose in court, so legal
proceedings should be an absolute last-resort option–and even then, they might
not be worth pursuing.

I have had a headache for 5 days now. My dr is treating me for sinuses but dais he isn’t sure what it could be. It is on the left back part of my head behind my ear( not close to my ear) Help!

Harry Nevus

This is extracted from:
TWIN CITIES BUSINESS
The Top Lawsuits Of 2013
by Steve Kaplan
December 20, 2013

Never Shout “He’s a Tool!” On a Crowded Website?

Dr. David McKee, a Duluth
neurologist, was not laughing when he saw what one former client wrote about him on a doctor-rating website. The reviewer, Dennis Laurion, complained that McKee made statements that he interpreted as rude and quoted a nurse who had called the doctor “a real tool.” As these statements echoed through the Internet, McKee felt his reputation was being tarnished. He sued, and so began
a four-year journey that ended this year in the Minnesota Supreme Court.

Laurion was unhappy with the way
McKee treated his father, who was brought to the doctor after he had a stroke. Laurion went to several rate-your-doctor sites to give his opinion. That’s just free speech, isn’t it?

It sure is, says Laurion’s attorney,
John D. Kelly of the Duluth firm Hanft Fride. “The court held that what my client was quoted as saying was not defamatory,” he says. “I do think the Internet makes it much easier for persons exercising poor judgment to broadcast
defamatory statements, however… a medium… doesn’t change the quality of a statement from non-defamatory to defamatory.”

But McKee’s lawyer, Marshall Tanick,
of Hellmuth & Johnson, says no matter where it was said, defamation is defamation. “The thing that’s often misunderstood is that this was not just
about free speech, but about making actual false statements,” Tanick says. “The problem is today’s unfettered opportunity to express opinion, whether or not the substance of what’s said is true or not. We need some boundaries.”

But boundaries were not on the minds
of the Minnesota Supreme Court. Free speech was. Chief Justice Lorie Gildea wrote, “The point of the post is, ‘This doctor did not treat my father well.’ I can’t grasp why that wouldn’t be protected opinion.” As to referring to the
doctor as “a real tool,” Justice Alan Page wrote that the insult “falls into the category of pure opinion because the term … cannot be reasonably interpreted as a fact and it cannot be proven true or false.”

The takeaway from this case might be
the knowledge that behind any rating service lie real people with real feelings. McKee spent more than $60,000 in the effort to clear his name, as he saw it. Dennis Laurion told the Star Tribune he spent the equivalent of two years’ income, some of which he had to borrow from relatives who supplied the
money by raiding their retirement funds.

In spite of Supreme Court disagreement and subsequent peer disagreement, Marshall Tanick is STILL saying “The thing
that’s often misunderstood is that THIS WAS NOT JUST ABOUT FREE SPEECH, BUT ABOUT MAKING ACTUAL FALSE STATEMENTS. The problem is today’s unfettered
opportunity to express opinion, whether or not the substance of what’s said is true or not. We need some boundaries.”

From the American Health Lawyers Association: IN THIS CASE, THE COURT FOUND THE SIX ALLEGEDLY DEFAMATORY STATEMENTS WERE NOT ACTIONABLE BECAUSE THE “SUBSTANCE, THE GIST, THE STING” OF PLAINTIFF’S VERSION FOR EACH OF THE STATEMENTS AS
PROVIDED IN DEPOSITION AND DEFENDANT’S VERSION ESSENTIALLY CARRIED THE SAME MEANING, satisfied the standard for substantial truth, did not show a tendency
to harm the plaintiff’s reputation and lower his estimation in the community, or were incapable of conveying a defamatory meaning (e.g., when a nurse told defendant that plaintiff was “a real tool”) based on “how an ordinary person understands the language used in the light of surrounding circumstances.”

From the Business Insurance Blog: THE MINNESOTA
HIGH COURT SAID, FOR INSTANCE, THAT DR. MCKEE’S VERSION OF HIS COMMENT ABOUT THE INTENSIVE CARE UNIT WAS SUBSTANTIALLY SIMILAR TO MR. LAURION’S. “In other words, Dr. McKee’s account of what he said would produce the same effect on the mind of the reader,” the court said. “The minor inaccuracies of expression (in the statement) as compared to Dr. McKee’s version of what he said do not give rise to a genuine issue as to falsity.”

From the Duane Morris Media Blog: The doctor said
in his deposition that with regard to finding out if Mr. Laurion was alive or dead, “I made a jocular comment… to the effect of I had looked for [Kenneth Laurion] up there in the intensive care unit and was glad to find that, when he wasn’t there, that he had been moved to a regular hospital bed, because you
only go one of two ways when you leave the intensive care unit; you either have improved to the point where you’re someplace like this or you leave because you’ve died.” THE COURT SAID THE DIFFERENCES BETWEEN THE TWO VERSIONS OF THE STATEMENTS ABOUT DEATH OR TRANSFER BY BOTH PLAINTIFF AND DEFENDANT WERE SO MINOR THAT THERE WAS NO FALSITY IN THE WEBSITE POSTINGS. In other words, the court indicated that the allegation about the statement was true.

Harry Nevus

Dentist loses suit after former patient criticizes him online

By Lincoln Graves, KATU News

A judge decided the critical comments made on review site YELP.com and other sites were free speech.

“I’m disgusted. I’m actually really disgusted,” said dentist Mo Saleh, who tried to sue his former client, Spencer Bailey, for defamation after finding negative reviews on the Internet. “The reason I’m risking
opportunity and risking this negative exposure is because I feel that this is wrong.”

But a judge threw out the suit before it got very far.

“When we walked into this courtroom, we didn’t walk on equal footing because of the Anti-SLAPP law,” Saleh said.

The “SLAPP” in the Anti-SLAPP law stands for Strategic Lawsuit Against Public Participation. Businesses can sometimes file those suits to quiet criticism. But the
Anti-SLAPP law can be a friend to those who are taken to court, giving them free speech protection when they make comments in a public forum and concern a
public interest, which a site like YELP seeks to serve.

“It’s not easy to be sued and dragged into court,” said Jeremiah Ross, the attorney who represented Bailey. “Just as we anticipated, they couldn’t prove their case because it wasn’t a defamatory statement.”

Still, Saleh may appeal, believing the online criticism was meant to harm him and not simply to inform the public. “I teach my kids to stand up when you’ve been wronged, and I think that’s absolutely disgusting what happened today,” he said.

One of the comments Bailey was accused of making was, “If Saleh finds a cavity, get a second opinion and get it filled by someone else.”

Saleh was seeking $300,000 in damages.

Court Watch

After losing defamation suits, plaintiffs seem to continue to feel defamed but cheated by legal trickery.

“I’m very disappointed by this court’s decision because as far as I can see the only avenue that I can see that I had to respond to this overwhelming attack was through the courts, and for the time being it appears that avenue has been closed without me ever getting a chance to present my evidence,” Dr. David McKee said. “Dennis Laurion is a liar and a bully and a coward,” McKee said.

David McKee, a neurologist with Northland Neurology and Myology, said he was disappointed and frustrated. “We need to change the law so someone with a personal vendetta who is going to use the Internet to make defamatory statements can be held responsible,” he said.

It’s a frustrating end for McKee, 51, who said he’s spent at least $50,000 in legal fees and another $11,000 to clear his name online after the story went viral, resulting in hundreds more negative postings about him — likely from people who never met him.

He hasn’t ruled out a second lawsuit stemming from those posts.

“I’m disgusted. I’m actually really disgusted,” said dentist Mo Saleh, who tried to sue his former client, Spencer Bailey, for defamation after finding negative reviews on the Internet. “The reason I’m risking opportunity and risking this negative exposure is because I feel that this is wrong.”

“When we walked into this courtroom, we didn’t walk on equal footing because of the Anti-SLAPP law,” Saleh said.

Still, Saleh may appeal, believing the online criticism was meant to harm him and not simply to inform the public. “I teach my kids to stand up when you’ve been wronged, and I think that’s absolutely disgusting what happened today,” he said.

Catherine Nazari of Greendale, Ind. said she posted negative reviews of her plastic surgeon online after she suffered horrible scars and disfigurement from her procedures.

That surgeon — Dr. Jean Loftus of Fort Wright — took her to court for those comments but the outcome was something neither one of them expected.

“I had breast implants, breast lift, arm lift and a tummy tuck all in the same day,” said Nazari, 54.

Nazari said she underwent plastic surgery in 2006 to remedy loose skin caused by losing weight but what she woke up to was not what she expected.

“My hands were numb. I had no feeling in my arms or my hands and she said it was due to the surgery, that it would come back in time but it never did,” she said.

Unsightly scars and permanent nerve damage Nazari says are the results of that surgery. Soon after, she took to the Internet to warn others about her plastic
surgeon.

“I just wanted people to know. Be diligent. Do your research,” she said.

But Loftus has a different view. “I can’t stand by and let someone say absolutely false, disparaging, untrue statements, blatant defamatory accusations about me,” Loftus said. Loftus said the comments Nazari posted online about her practice were not negative reviews. They were lies. She said Nazari had a previous nerve condition that is causing her medical problems. Her incisions were not even deep enough to reach her nerves according to Loftus. That is when she decided to sue Nazari for defamation. “I did not file this suit to make money or to win an award. I filed this suit to
bring out the truth,” Loftus said.

But a U.S. District Court judge in Covington did not agree and dismissed the doctor’s defamation claim and Nazari’s counterclaims citing under the 1st Amendment, Nazari had a right to her opinion.

Local defamation attorney Rob Linneman isn’t surprised. “This outcome is the outcome most constitutional scholars would have predicted. The consideration that is given to most 1st Amendment cases is what effect will it have on other people who
would make comments if we punish this person for making this comment,” Linneman said.

Loftus disagrees. “It gives everybody the lead way to say whatever they want about anything they want and essentially hide behind the 1st Amendment,” Loftus said, noting she is most concerned about the precedent her case has set.

Though she is still unhappy with her procedures, Nazari is glad the legal fight is over. “My whole life has been disrupted because of all of this,” she said.

Nazari filed a medical malpractice suit against Loftus but the case was thrown out. No medical expert could support her claims that the problems she is xperiencing are a result of plastic surgery.

WHITEWATER, Wis. (AP) — A University of Wisconsin-Whitewater professor is suing a former graduate student who posted online comments and videos that the teacher considers defamatory.

Anthony Llewellyn took a class last year from communications professor Sally Vogl-Bauer, but the experience didn’t go well, the Janesville Gazette reported (http://bit.ly/1hcjNmn ) Thursday.

Llewellyn posted comments on professor-rating sites accusing the teacher of criticizing his academic abilities, grading him unfairly and causing him to fail out of school. He said he spoke with her in
April about his concerns, two months before he was told he had failed her class.

Vogl-Bauer contends the comments amount to defamation, while Llewellyn says his goal was simply to inform the public about
how the professor treated him.

Tim Edwards, the attorney representing Vogl-Bauer, said the comments could be especially damaging to someone in a small professional community. He said he and Vogl-Bauer agree that students should be
allowed to express their opinions, “but when you go so far beyond that,
into a concerted effort to attack somebody’s reputation because things didn’t go your way, that’s much different.”

Edwards and Vogl-Bauer asked Llewellyn to take down his online comments and videos. They filed the lawsuit after he refused.

It’s not clear how successful the lawsuit will be, but a similar case in Minnesota ended with a ruling in favor of the person who posted the online rating. In the case (*), a doctor took offense when a patient’s son went on a rate-your-doctor website and called him “a real tool,” slang for stupid or foolish. The Minnesota Supreme Court ruled in January 2013 that the comment wasn’t defamatory because it was an opinion
protected by free-speech rights.

Anthony Llewellyn now has three lawyers, Andrew Price, Kate E. Maternowski, and Laura Brenner . Jury trial is still scheduled for SEP 15 – SEP 17, 2014, in the Walworth County Judicial Center Courtroom of the Honorable Phillip A Koss; however, it is hard to find any of Anthony Llewellyn’s videos online. IS HE TAKING THE VIDEOS DOWN?

Sally Vogl-Bauer apparently had her pre-trial hearing AUG 20, 2014. It is no longer listed on the pending court docket.

You’ll see suit history and public data about Sally Vogl-Bauer and Anthony Llewellyn.

Gradual Student

If Sally Vogl-Bauer winds down, we can follow the defamation case of teacher Elizabeth Ethredge.

“Texas Defamation: A Big Tale Of A Teacher & Two Rebellious High School Students…”

Thursday, February 13th, 2014

English teacher Elizabeth Ethredge, of the Waller Independent School District, filed a Texas defamation lawsuit against two of her students, Demi Alyssa Gray and Dylan Noble Wells. Ethredge insists Gray and Noble twisted tales about classroom events in retaliation for being disciplined. But Gray and Noble insist the teacher acted inappropriately in class.

The month was November; the year, 2012. According to Ethredge, she was giving her students a State-mandated lesson in oral storytelling. The seasoned teacher opted to regale her class with a tale about her son being robbed at another school in the district.

According to two of her students, Gray and Noble, five months after the lesson, Ethredge encouraged students to hone their spy skills, head over to Facebook, and avenge her son’s honor by trying to purchase goods from the person Ethredge believed robbed her son.

The curious part about this case, though, is that the students waited months to “snitch” on their teacher. Why? Well, if you believe Ethredge’s side of the story, they only did it in retaliation for her sending them to the principal’s office over breaking school dress code rules and being disruptive in class.

Soon after the two students ratted on their teacher, the school district suspended Ethredge with pay. Soon after that, administrators seriously considered termination. As a result, she decided to file an Internet defamation case.

Filed at the Harris County Court, Ethredge’s suit is asking for punitive damages, citing defamation and intentional infliction of emotional distress. Ethredge’s claim averred that the students’ actions were a “deliberate and malicious intent to injure plaintiff’s reputation.” To temper any speculation about the nature of what happened in her classroom, Ethredge’s suit explains that the “oral storytelling exercise was directly related to and in compliance with the Texas Essential Knowledge and
Skills, the State Standards for curriculum in public schools in Texas.”

In order to win this case, Ethredge will most likely have to prove material harm – as you can’t win a defamation lawsuit over hurt feelings. It’s interesting to note that Texas does not have a false light tort – if it did, Ethredge may have been able to file a stronger case. That’s not to say she doesn’t have a chance at winning this one – especially since administrators are talking termination — but being able to add a false light charge would put more “meat” on the proverbial bone.

My Medical Malpractice suit against Loftus was NOT thrown out it was VOLUNTARILY DISMISSED WITH OUT MY KNOWLEDGE, ONE WEEK PRIOR TO BEING TOLD THAT MY CASE WAS GOING TO TRIAL, BY MY SO-CALLED ATTORNEY ROBERT HANDLEMAN OF COLUMBUS, OHIO….ALL I CAN SAY IS KARMA….TRUTH HAS A WAY OF ALWAYS COMING OUT…SOONER OR LATER….